State v. Ruiz

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RUBEN RUIZ, JR., ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05-11-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0351 DEPARMTENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-164264-001 DT The Honorable Paul J. McMurdie, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 for Ruben Ruiz, Jr. ( defendant ) appeals his conviction armed robbery, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1904 (2010). 1 Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has advised that she has thoroughly question of searched law and fundamental error. 857 P.2d 388, the requests record that and we found review no the arguable record for See State v. Richardson, 175 Ariz. 336, 339, 391 (App. 1993). Defendant was given the opportunity to file a supplemental brief in propria persona but has not done so. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 On August 24, 2008, at around 10:30 p.m., J.T. drove into the parking lot of his condominium complex. In his rearview mirror, he saw a van with a man hanging from the door. When J.T. got out of his car, a man, later identified as defendant, stood there with a knife demanding money. ¶3 As J.T. reached for his wallet, another man came from behind and hit him in the head. A third man arrived, and Defendant hit J.T. in the face. J.T. testified they beating me up and pushing me away from the car. 1 all One of the men We cite to the current version of statutes revisions material to this decision have occurred. 2 started when no took his wallet. police. After the last man ran off, J.T. called the Police showed J.T. photo line-ups; defendant as the man with the knife. he identified Defendant s fingerprints were lifted from the windshield and the door frame of J.T. s car. ¶4 A jury trial ensued. After the State rested, defendant moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ( Rule ) 20. The motion was denied. During deliberations, the jury asked three questions for which defense counsel waived defendant s presence. The first asked how much of defendant s face J.T. saw; the court and counsel agreed to advise the jury to rely on the collective memories of the evidence presented. The second and third questions asked whether find the jury could accomplice theory. defendant guilty based on an The court and counsel agreed the jury must refer to the final jury instructions. ¶5 The Defense jury counsel found filed defendant a motion guilty for of new armed trial robbery. based on conversations he had with jurors after the verdict that led him to believe they convicted on an accomplice liability theory, not because they believed beyond defendant was the attacker. that the juror statements a shadow of a doubt that The trial court correctly ruled could 3 not be used to impeach the verdict and denied the motion pursuant to State v. Cruz, 218 Ariz. 149, 159, ¶ 33, 181 P.3d 196, 206 (2008). ¶6 At sentencing, the prosecutor presumptive term of 10.5 years imprisonment. for a mitigated seven-year sentence, requested the Defendant asked arguing there are no aggravating factors legally in this case in the sense that the State did not put on an aggravation hearing, so it did not submit any for the jury to consider, and thus no aggravating factors can be considered. ¶7 The trial court found three aggravators: physical harm to the victim, presence of accomplices, and a crime motivated by pecuniary gain. The court also considered mitigating factors and found that defendant was a young man with no prior felony convictions and a minimal criminal (juvenile) record. that mitigating factors outweighed aggravators, Finding defendant was sentenced to a slightly mitigated term of 8.5 years, with 211 days presentence incarceration credit. DISCUSSION ¶8 We have read and considered the briefs submitted by defense counsel and reviewed the entire record. fundamental error. We find no All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. irregularities in the deliberation process. 4 There were no 1. Rule 20 Motion ¶9 The trial court properly denied defendant s Rule 20 motion. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Crim. P. 20. Substantial evidence is such Ariz. R. proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation insufficiency of omitted). the Reversible error occurs where evidence only based there on is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶10 The including State J.T. s presented testimony defendant to the crime. substantial and physical evidence of evidence guilt, linking Fingerprints lifted from the windshield and door frame of J.T. s car matched defendant s. 2. ¶11 Sentencing Defendant contends the trial court committed fundamental error and violated his Sixth Amendment rights by imposing a sentence based, in part, on aggravating factors not found by the jury. ¶12 We disagree. The Sixth Amendment requires that [o]ther than the fact of a prior conviction, any fact that increases the penalty 5 for a crime beyond the prescribed statutory maximum must be submitted to a jury[] and proved beyond a reasonable doubt. State v. Price, 217 Ariz. 182, 184, ¶ 8, 171 P.3d 1223, 1225 (2007) (citing (2000)). Apprendi v. New Jersey, 530 U.S. 466, 490 The United States Supreme Court explained that the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely v. Washington, 542 U.S. 296, 303-04 (2004). ¶13 Under Arizona's noncapital sentencing statutes, the maximum punishment authorized by a jury verdict alone, without the finding of any additional facts, is the presumptive term. State v. Johnson, 210 Ariz. 438, 441, ¶ 10, 111 P.3d 1038, 1041 (App. 2005) (citations omitted). Stated differently, the statutory maximum sentence, in a case in which no aggravating factors have been proven to a jury beyond a reasonable doubt, is the presumptive sentence established by statute. Price, 217 Ariz. at 184-85, ¶ 8, 171 P.3d at 1225-26 (citations omitted). When the trial court imposes a sentence that is less than the presumptive term, the requirements of Apprendi and Blakely are not offended. Johnson, 210 Ariz. at 441, ¶¶ 9-10, 111 P.3d at 1041; State v. Miranda-Cabrera, 209 Ariz. 220, 227-28, ¶ 34, 99 P.3d 35, 42-43 (App. 2004) (finding no Sixth Amendment violation when court weighs non-Blakely-compliant 6 aggravator against mitigating factors and resulting sentence is below the presumptive term). ¶14 Here, the presumptive prison term for armed robbery is 10.5 years. A.R.S. §§ 13-704(A)(dangerous felonies) (2010) and -1904(B). The jury s verdict thus permitted the trial court to impose a 10.5-year sentence without any additional findings of aggravation by the jury. See A.R.S. § 13-704(A). Because the court imposed a slightly mitigated term of 8.5 years, defendant suffered no constitutional violation, and his sentence was proper. CONCLUSION ¶15 We affirm defendant s conviction and sentence. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 7 156-57 (1984). On the court s own motion, defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 8

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